Thorpe v Dul and Others

JurisdictionUK Non-devolved
Date2003
CourtEmployment Appeal Tribunal
Employment Appeal Tribunal Thorpe v Dul and others 2003 May 12; July 1 Wall J, Mr D Norman and Miss D Wittingham

Employment - Contract of employment - Apprentice - Modern apprenticeship agreement - Whether contract of employment

The applicant was party to a modern apprenticeship agreement between himself, the respondent employer, and a training and enterprise council, which provided training and funding through the respondent college. The agreement set out the responsibilities of the parties including the need to agree an apprenticeship plan, provide experience, facilities and training, review progress, try to arrange alternative training if the apprenticeship was terminated due to redundancy and to find the apprentice work after the completion of the agreement. The applicant was to commit himself to the successful completion of the apprenticeship, behave in a responsible manner and comply with the employer's terms and conditions of employment, and the council was to ensure that training needs were met and to provide funding and support. The applicant was dismissed following a driving disqualification and brought a claim of breach of contract against the college and made complaints of unfair dismissal and breach of contract against the employer. An employment tribunal dismissed the claim against the college on the ground that there was no contractual relationship but upheld the complaints against the employer, holding that a contract of apprenticeship was a special contract which could not be terminated except under the terms of the agreement or for serious misconduct, neither of which applied.

On appeal by the employer—

Held, allowing the appeal, that the modern apprenticeship agreement entered into by the parties was not a contract of apprenticeship in the traditional sense but was a combination of training and job experience and was not itself a contract of employment between the employer and the applicant; and that, accordingly, the tribunal's decision could not stand and the matter would be remitted for the tribunal to determine what the applicant's status was (post, paras 6471).

The following cases are referred to in the judgment:

Daly v Allied Suppliers Ltd [1983] IRLR 14, EAT

Dunk v George Waller & Son Ltd [1970] 2 QB 163; [1970] 2 WLR 1241; [1970] 2 All ER 630, CA

Edmonds v Lawson [2000] IRLR 18; [2000] ICR 567; [2000] QB 501; [2000] 2 WLR 1091, CA

R v Inhabitants of Crediton (1831) 2 B & Ad 493

R v Inhabitants of Laindon (1799) 8 Durn & E 379

Wallace v C A Roofing Services Ltd [1996] IRLR 435

Whitely v Marton Electrical Ltd [2003] ICR 495, EAT

Wiltshire Police Authority v Wynn [1980] ICR 649; [1981] QB 95; [1980] 3 WLR 445, CA

No additional cases were cited in argument.

APPEAL from an employment tribunal sitting at Leicester

The applicant, Mr Kazimierz Dul, made complaints of unfair dismissal and breach of contract against the first respondent, the employer, Mr David Thorpe, and a claim of breach of contract against the second respondent, Brooksby Melton College. By a decision promulgated on 25 January 2003 the tribunal dismissed the claim against the college and upheld the claims against the employer.

By an amended notice of appeal the employer appealed on the grounds that (1) the tribunal had erred in law in assimilating the legal status of the modern apprenticeship agreement to that of an indentured apprenticeship in the Employment Rights Act 1996; (2) a modern apprenticeship agreement might or might not include a contract of employment; (3) the tribunal made no relevant finding as to whether the agreement included a contract of employment; and (4) the agreement did not contain the minimum requirements of an apprenticeship.

The Learning and Skills Council was joined as a party to the appeal.

The facts are stated in the judgment.

The employer in person.

John Horan for the applicant.

C McGrath for the college.

Clive Sheldon for the council.

Cur adv vult

1 July. The following judgment of the appeal tribunal was handed down.

WALL J

1 The two important and inter-related points raised by this appeal were formulated by Judge Peter Clark at the preliminary hearing on 22 September 2002 in the following way:

“What precisely is the effect of a relationship created by a modern apprenticeship agreement in terms of employment law protection of the apprentice and the person with whom he is placed to work? Mr O'Dempsey”—who appeared on that occasion for the employer, under the Employment Law Appeal Advice Scheme — “submits that the modern apprenticeship as opposed to the traditional form of apprenticeship may or may not include a contract of employment. If it is right that no contract of employment is created between the applicant and the person with whom he is placed, it brings into question first whether or not the relationship amounts to a contract of service or apprenticeship within the meaning of section 230(2) of the Employment Rights Act 1996 for the purposes of unfair dismissal protection and similarly for the purposes of applying the [Transfer of Undertakings (Protection of Employment) Regulations 1981]. Secondly, a question arises as to whether breach of the terms of a modern apprenticeship agreement amounts to breach of a contract of employment or other contract connected with employment for the purposes of section 3(2)(a) of the Employment Tribunals Act 1996 and consequently article 5 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. It seems to us that this is a point which requires full argument at a hearing at which both parties are present.”

The appeal

2 The appeal in which these points arise is by Mr David Thorpe, the employer, against the decision of the employment tribunal held at Leicester on 22 January 2002 and promulgated three days later on 25 January 2002. Before the tribunal was an application brought by the applicant, Mr Kazimierz Luke Dul, against the employer and Brooksby Melton College (“the college”).

3 The applicant's originating application claimed unfair dismissal/ wrongful dismissal/unauthorised deduction of wages against both the employer and the college. The tribunal found that the applicant had no claim against the college, and that claim was dismissed. However, as against the employer, the tribunal found that the applicant had been unfairly dismissed. The employer was ordered to pay compensation to the applicant in the sum of £250. This was made up as to a basic award of £50 (one half of a week's pay at £100 per week) and £200 for loss of his employment rights. In addition, the tribunal found that the employer was in breach of a contract of employment with the applicant, and ordered him to pay damages of £5,683, made up as to £3,683 “net loss of earnings to the end of apprenticeship” and a figure of £2,000 “loss of benefits of apprenticeship at end of apprenticeship”. The tribunal added:

“Despite the fact that we consider the applicant has contributed to his dismissal by 50%, we do not consider it would be equitable to reduce these sums, although we would have reduced any compensatory award under the unfair dismissal head. As we consider the applicant has been adequately compensated under the breach of contract award we make no further award for unfair dismissal.”

4 Before the tribunal, the applicant was represented by a member of the local Citizens Advice Bureau. The employer appeared in person (as he has appeared before us) and the college was represented by its chief executive, Mr Gray. It will thus be seen that the tribunal did not have the benefit of argument from any legally qualified representative. This, in our judgment, was unfortunate, because as a consequence it was not until the preliminary hearing of this appeal that the real point of the case emerged, and was articulated by Judge Peter Clark in the terms set out above.

5 At the preliminary hearing, the appeal tribunal further directed that the Registrar of the Employment Appeal Tribunal write to the relevant government department inviting it to be joined as a party to the appeal, or to make submissions at the full hearing. That invitation was accepted, and we have had the benefit—denied, of course, to the tribunal—of full argument from Mr Sheldon on behalf of the Learning and Skills Council. We are extremely grateful to him for his full, clear, helpful and fair submissions.

The facts

6 The applicant was born on 22 April 1983. He was thus 16 when, on 19 July 1999, he entered into a tri-partite written agreement with a company then known as and owned by one Ray Larrington, and the Leicestershire Training and Enterprise Council. That agreement is headed “Modern Apprenticeship Agreement”. It describes the applicant as “the apprentice”, Mr Larrington as “the company” and the council as “the TEC”.

7 The agreement identifies the “responsibilities” which each party has under it. The company's responsibilities are the following:

“(i) to, jointly with the apprentice, agree an apprenticeship plan, regularly review progress made in training and agree any changes needed to the plan; (ii) to provide, as far as is reasonably practicable, the experience, facilities and training necessary to achieve the training objectives specified in the apprenticeship plan; (iii) to use reasonable endeavours, with the assistance of various local groups/local networks, to arrange alternative, suitable training for the remainder of the training period with another company if the apprenticeship is terminated due to redundancy; (iv) to use all reasonable endeavours, with the assistance of various groups/local networks, to arrange employment elsewhere should the employer be unable to provide employment after the completion of the apprenticeship; (v) to undertake their legal and contractual responsibilities for the health and safety of the apprentice; (vi) to ensure that the equal opportunities principles laid down in the framework are adopted.”

8 The apprentice's responsibilities are the...

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    ...I presided over the constitution of the Employment Appeal Tribunal (EAT) which decided the case of Thorpe v Dul and others (No 1) [2003] ICR 1556 (hereafter Thorpe No. 1) , on which the EAT relied. 47 It was, I think, unfortunate both that the respondent was not represented on this appeal a......
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